Appeal from Superior Court, Pima County; Frank E. Thomas, Judge.
Judgment reversed and cause remanded for new trial.
William G. Hall, Hamilton R. Catlin and John F. Molloy, of Tucson, for appellant
Krucker & Fowler and Richard B. Evans, of Tucson, for appellee.
Faires, Superior Judge. Udall, Stanford, Phelps, and De Concini, JJ., concurring.Note: Chief Justice LaPRADE being ill, the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, was called to sit in his stead.
Faires, Superior Judge.
[68 Ariz. 407] This is an appeal from a judgment of the superior court of Pima county, entered in favor of the plaintiff-appellee and against the defendant-appellant herein, and from an order of said court denying appellant's motion for new trial and to set aside and vacate said judgment.
The issues presented involve consideration of appellee's second amended complaint, which is based upon a breach of contract, the answer thereto, the appellant's three counterclaims, and appellee's answer to said counterclaims.
Appellant and appellee on April 1, 1945, entered into a certain written contract, which, insofar as same affects the issues herein, provided that appellant buy cattle to be placed upon appellee's ranch, appellee to pasture and care for same, receiving as compensation for such services one half the net profit from the sale of said cattle. The net profit was to be the balance remaining after returning to appellant the cost of the cattle and all expenses incurred in their care, raising, and marketing; all bills incurred and submitted for payment were to have the approval of both parties.
The contract further provided that all calves born of said cattle were not to be sold but divided equally between the parties when said calves were three months old, and at said time were to become the individual property of the parties. Appellee agreed that without charge he would pasture and care for all calves accruing to appellant until they were one year old. The title to all other cattle not sold under this agreement was to remain the sole property [68 Ariz. 408] of appellant. The contract expressly provided that appellee would acquire no interest in the cows furnished by appellant, but was to receive one half of the calves as above specified.
The agreement was to remain in effect for one year and upon expiration of that time would be subject to cancellation by either party upon thirty days' notice in writing. In such event, a fair and equitable settlement would be made by the respective parties, or, in case of disagreement, the matter would be submitted to arbitration.
After an unsuccessful attempt to arbitrate their differences, the parties filed this suit stipulating that the provisions of said contract relating to submission of disagreement to arbitration be waived and that the award made by said arbitrator should be disregarded.
The case was tried before the court sitting without a jury, and at the conclusion thereof, with no formal findings of fact being made as none were requested, the court entered judgment by direction to the clerk in the form ...